Citation Nr: 0607669
Decision Date: 03/16/06 Archive Date: 03/29/06
DOCKET NO. 00-24 551 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for residuals of a
stroke, as secondary to service-connected hypertension.
2. Entitlement to service connection for a neurological
disorder of the hands and feet, as secondary to service-
connected hypertension.
3. Entitlement to service connection for memory loss, as
secondary to service-connected hypertension.
4. Entitlement to service connection for a vascular
disorder, as secondary to service-connected hypertension.
5. Entitlement to service connection for a kidney disorder,
as secondary to service-connected hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to June
1972.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a December 1999 rating decision of the
Phoenix, Arizona, Department of Veterans Affairs (VA)
Regional Office (RO).
The issues of entitlement to service connection for a
neurological disorder of the hands and feet, and memory loss,
both claimed as secondary to service-connected hypertension
are addressed in the REMAND portion of the decision below and
are REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the veteran's claims for service connection for residuals of
a stroke, a kidney disorder, and a vascular disorder has been
obtained or requested by the RO.
2. The medical evidence does not establish that the veteran
suffers from any residuals of a stroke.
3. The veteran's kidney disability is not related to a
service-connected disability.
4. The veteran's vascular disorder is related to the
service-connected hypertension.
CONCLUSIONS OF LAW
1. Residuals of a stroke are not proximately due to or the
result of a service connected disability. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310
(2005).
2. A kidney disorder is not proximately due to or the result
of a service connected disability. 38 U.S.C.A. §§ 1110,
1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2005).
3. A vascular disorder is proximately due to or the result
of service-connected hypertension. 38 U.S.C.A. §§ 1110,
1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA
imposes obligations on VA in terms of its duties to notify
and assist claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159 (b) (2005); Quartuccio v. Principi. 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
The Court also held that VA must request that the claimant
provide any evidence in his possession that pertains to the
claim. Id. This "fourth element" comes from the language
of 38 C.F.R. § 3.159(b)(1).
The Board finds that the VCAA notice requirements have been
satisfied. With regard to element (1), above, the Board
notes that the RO sent the appellant VCAA notice letters in
August 2001 and April 2004 that told him what was necessary
for his claims to be granted. In addition, by virtue of the
rating decision on appeal, the statement of the case (SOC)
and the Supplemental Statements of the Case (SSOCs), he was
provided with specific information as to why his claims
seeking service connection for disabilities secondary to his
hypertension were being denied, and of the evidence that was
lacking.
With regard to elements (2) and (3), the Board notes that the
RO's August 2001 and April 2004 letters notified the
appellant of his and VA's respective responsibilities for
obtaining information and evidence under the VCAA. More
specifically, the letter explained that VA would help him get
such things as medical records, or records from other Federal
agencies, but that he was responsible for providing any
necessary releases and enough information about the records
so that VA could request them from the person or agency that
had them.
Finally, with respect to element (4), the Board notes that in
April 2004 the RO asked the appellant to submit any evidence
he had that would pertain to his claim. In addition, he was
supplied with the complete text of 38 C.F.R. § 3.159(b)(1) by
way of the August 2005 SSOC.
The Board is mindful that, in concluding that the VCAA notice
requirements have been satisfied, the Board has relied on
communications other than the RO's formal VCAA notice letters
to the claimant. However, at its core, what the VCAA seeks
to achieve is to give the appellant notice of the elements
outlined above. Once that has been done irrespective of
whether it has been done by way of a single notice letter, or
via more than one communication the essential purposes of the
VCAA have been satisfied. Here, the Board finds that,
because each of the four content requirements of a VCAA
notice has been met, any error in not providing a single
notice to the appellant covering all content requirements was
harmless. See, e.g., 38 C.F.R. § 20.1102 (2005); Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
The Court in Pelegrini also held, in part, that a VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits. In this case, the initial AOJ decision was made
prior to the veteran having been fully informed of the VCAA.
However, the Board finds that any defect with respect to the
VCAA notice requirement in this case was harmless error.
As discussed above, the appellant has been provided "a
meaningful opportunity to participate effectively in the
processing of [his] claim by VA." Mayfield, 19 Vet. App. at
128. Therefore, "[t]he timing-of-notice error was thus
nonprejudicial in this case." Mayfield, 19 Vet. App. at
128, (holding that section 5103(a) notice provided after
initial RO decision can "essentially cure [] the error in
the timing of notice" so as to "afford a claimant a
meaningful opportunity to participate effectively in the
processing of ... claim by VA") (citing Pelegrini, 18 Vet.
App. at 122-24). In light of the content-complying notice
that the RO provided prior to sending the case to the Board
for de novo review, the appellant was not prejudiced by the
delay in providing content-complying notice, because, under
these circumstance, "the error did not affect the essential
fairness of the adjudication", Mayfield, supra (holding
timing-of-notice error nonprejudicial where fairness of
adjudication was unaffected because appellant was able to
participate effectively in processing of claim).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO
obtained service medical records, statements from the
veteran, VA treatment records, private medical records, and
records from the Social Security Administration. In
addition, the veteran was provided several VA examinations.
The veteran has not indicated that there is any additional
evidence available to help support his claims for service
connection.
Thus, on appellate review, the Board sees no areas in which
further development is needed. The RO has essentially met
the requirements of the VCAA, and there would be no benefit
in developing this case further. See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant are to be avoided). Under
these circumstances, adjudication of this appeal, without
referral to the RO for further consideration of the claim
under the VCAA, poses no prejudice to the appellant. See
Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92.
II. Entitlement to service connection
In general, service connection will be granted for disability
resulting from injury or disease incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2005).
The veteran has claimed that his residuals of a stroke,
neurological disorder of the hands and feet, memory loss,
vascular disorder, and kidney disorder should be service
connected as secondary to his service-connected hypertension.
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. In addition, a disability which is aggravated by
a service-connected disability shall be service-connected.
When service connection is established for a secondary
condition it shall be considered as part of the original
condition. 38 C.F.R. § 3.310(a) (2005). Establishing
service connection on a secondary basis requires evidence
sufficient to show (1) that a current disability exists and
(2) that the current disability was either (a) caused by or
(b) aggravated by a service connected disability. 38 C.F.R.
§ 3.310(a) (2005); Allen v Brown, 7 Vet. App. 439 (1995) (en
banc). The issues of entitlement to service connection for a
neurological disorder of the hands and feet, and memory loss,
both claimed as secondary to hypertension, are the subjects
of the remand portion of this decision.
To grant service connection, it is required that the evidence
shows the existence of a current disability, an inservice
disease or injury, and a link between the disability and the
inservice disease or injury. Watson v. Brown, 4 Vet.
App. 309, 314 (1993). This principle has been repeatedly
reaffirmed by the United States Court of Appeals for the
Federal Circuit, which recently stated that "a veteran
seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability". Boyer v. West, 210
F.3d 1351, 1353 (Fed.Cir. 2000).
A. Residuals of a stroke
The veteran has been granted service-connection for
hypertension. According to the veteran he suffered an
episode in 1962 that involved loss of memory but no
paralysis. He stated that this was diagnosed as a stroke and
that he has had several of these same episodes since then.
There are no service medical records, private treatment
records, or VA treatment records that establish the veteran
suffered a stroke. A computed tomography (CT) scan of the
head conducted in March 1996 showed a minimal prominence of
the prefrontal subdural space in the high frontal area. The
ventricles were not dilated. There was no mass effect.
There were no abnormal intraventricular, intraparenchymal, or
extra-axial fluid collections or evidence of acute or recent
extravasation of blood. There was calcification in the
choroid plexus and pineal glands.
The veteran underwent a VA examination in July 1998. The
examiner noted the veteran's history of hypertension, and the
veteran's reported history of episodes as described above.
The examiner diagnosed the veteran with essential
hypertension, well-controlled; a history of spinal stenosis
post operative since 1992, and glaucoma under control with
medication. There is no diagnosis with respect to a stroke.
The veteran was provided a second VA examination in June
2002. The examiner noted the veteran's history, but stated
that there was no medical evidence of a stroke in the past.
The examiner reviewed the 1996 CT scan and ordered a magnetic
resonance imaging (MRI). The doctor stated that these tests
did not show evidence of a previous stroke and it was noted
that the veteran's history of stroke made little sense to
him.
The veteran underwent an MRI of the brain in July 2002. The
MRI showed mild bilateral anterior and middle ethmoid sinus
mucosal thickening. The left vertebral artery was dominant
and the basilar artery was tortuous. Basilar and internal
carotid signal voids were present. There was a tiny focus of
minimal increased signal in the left hemi-pons. There was
some scattered periventricular and subcortical white matter
focal lesions bilaterally in the frontal lobes. There were
no cerebral lesions and the ventricles were normal size and
morphology. There was mild generalized cortical volume loss.
There was no intracranial hemorrhage or other intrinsic T1
shortening and no intra-axial or extra-axial masses or
contrast enhancing lesions. The diagnostic impression was
generalized atrophy and very mild nonspecific foci of
increased T2/Flair signal in the deep white matter, with no
evidence of acute cortical infarction or significant regional
mass effect, nor any contrast enhancing lesions.
The veteran was provided his most recent VA examination in
October 2004. The examiner reviewed the medical evidence and
stated there was no medical documentation that the veteran
had suffered a stroke. He noted that it was possible, but
that he was unable to definitively prove that the veteran had
a stroke.
Based on the above, the Board finds that entitlement to
service connection for residuals of a stroke should be denied
because there is not sufficient medical evidence establishing
that the veteran currently suffers from any residuals of a
stroke. The medical evidence does not establish that the
veteran has suffered a stroke. In the absence of proof of a
present disability there can be no valid claim. Brammer v.
Derwinski, 3 Vet. App. 223 (1992). The Board finds the VA
examination, the CT scan report, and the MRI report to be
persuasive. The VA examination in October 2004, who reviewed
the entire claims folder, was unable to find any objective
medical evidence of a stroke. Nowhere in the claims folder
is there a diagnosis of a stroke. Since there is
insufficient current medical evidence of any residuals of a
stroke, service connection for this condition is not
warranted. 38 C.F.R. § 3.310 (2005). The Board acknowledges
that the veteran is reporting a history of strokes, however,
while the veteran is competent to describe symptoms, he is
not a medical professional, and is not competent to offer
opinions as to the diagnosis or etiology of medical
conditions. See, Espiritu v. Derwinski, 2 Vet. App. 492
(1992). Service connection is not warranted for residuals of
a stroke as secondary to service-connected hypertension.
B. Kidney disorder
The VA and private treatment records do not indicate that the
veteran suffers from any kidney disorder attributable to
hypertension. He has been treated for repeated kidney
stones, but there is no suggestion that these are linked to
hypertension.
The veteran underwent a VA examination in July 1998. The
examiner noted the veteran's history of kidney stones, and
also noted that the veteran reported a hospitalization in
1994 where it was determined that his left kidney was
nonfunctioning. On examination there was no abnormality of
the kidneys noted, and no diagnosis of a kidney disability.
The veteran was provided a second VA examination in June 2002
that did not indicate any diagnosis with respect to the
kidneys.
The veteran underwent his most recent VA examination in
October 2004. The examiner noted the veteran's history of a
severe episode of urolithiasis in 1992 and that the veteran
was found to have renal pelvis. He underwent lithotripsy at
that time. The veteran also had at least one episode of a
urolithiasis associated urinary tract infection which is
documented by urinalyses showing blood and bacteruria. The
examiner found no more recent evidence of urolithiasis. The
veteran's serial renal function studies, including creatinine
and BUN, have been essentially normal with a slightly
elevated DUN, not unusual for an 80-year old patient. The
examiner stated that the veteran's nephrolithiasis (kidney
stones) did not relate to any finding during his time in
service and it was not likely related in any way to his
hypertension. The examiner noted that there is no evidence
of renal insufficiency.
Based on the above, the Board finds that service connection
for a kidney disorder claimed as secondary to hypertension,
is not warranted. The veteran apparently had some indication
of a non-functioning kidney in 1994, but the most recent VA
examination found that the veteran's renal function tests
were essentially normal. The only kidney disability noted in
the record is a history of kidney stones. There is no
suggestion in the treatment notes that the veteran's kidney
stones were caused by or aggravated by his hypertension. The
VA examiner in October 2004 specifically stated that it was
not likely that there was a relationship between the
veteran's kidney stones and his hypertension. The Board
acknowledges the veteran's belief that his kidney disorder is
related to or aggravated by his hypertension, but as a lay
person, the veteran is not competent to testify to a medical
diagnosis or etiology. See, Espiritu, 2 Vet. App. 492
(1992). Therefore, secondary service connection for a kidney
disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.310 (2005).
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
C. Vascular disorder
The veteran submitted records from Banner Baywood Medical
Center dated in October 2003. These records show the veteran
was found to have concentric hypertrophy of the left
ventricle with normal left ventricle function with an
ejection fraction of 63%. Doppler study revealed mild mitral
regurgitation and mild to moderate tricuspid regurgitation
and right ventricular systolic pressure of about 30 to 32
mmHg. There was suspicious hypokinesis of the inferior wall
present, and the final conclusion was possible positive
stress echo for ischemia involving the inferior wall.
The veteran underwent a VA examination in October 2004. The
examiner noted the veteran's history including the Banner
Baywood Medical Center report from October 2003. The VA
examiner stated that based on these findings and an
examination finding of some shortness of breath with
exertion, and some chest pain with mild exertion, it is
reasonable to presume that the veteran has ischemic heart
disease, which is of fairly stable variety. The examiner
stated that it is likely that the veteran's concentric
ventricular hypertrophy is related to the veteran's
longstanding hypertension. The examiner stated, however,
that coronary artery disease is a multifactorial problem,
almost universally present in 80-year old men with a history
of hypertension, but also it is unlikely that the
hypertension is the predominant or sole cause of the
veteran's rather stable coronary artery disease.
Based on the above, the Board finds that service connection
for a vascular disorder, or heart disease, is warranted. The
VA examiner has noted that the veteran's concentric
hypertrophy of the left ventricle is likely related to
hypertension. The examiner also stated that coronary artery
disease is not solely caused by hypertension but is instead a
multifactorial problem. There is no doubt, however, that
hypertension plays a role in the development of coronary
artery disease or ischemic heart disease. In addition, it is
not necessary that hypertension be the sole cause of the
veteran's heart disease in order for service connection to be
granted. The veteran is also entitled to service connection
if his hypertension aggravated his heart disease. 38 C.F.R.
§ 3.310(a) (2005); Allen v Brown, 7 Vet. App. 439 (1995) (en
banc). The VA examiner found that the veteran's concentric
hypertrophy of the left ventricle was likely caused by
hypertension, and that hypertension may have been a cause of
his coronary artery disease as well, although not the sole
cause. Giving the veteran the benefit of the doubt, the
Board finds that entitlement to service connection for
coronary artery disease claimed as a vascular disorder is
warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§§ 3.303, 3.310 (2005).
ORDER
Entitlement to service connection for residuals of a stroke
is denied.
Entitlement to service connection for a kidney disorder is
denied.
Entitlement to service connection for coronary artery disease
claimed as a vascular disorder is granted. (Prior to
assigning an evaluation and effective date for the award of
service connection, the RO should ensure that there is
compliance with VCAA requirements concerning notice to the
veteran as provided by the Court in the recent case of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506.)
REMAND
The Board's remand in November 2003 instructed the RO to
schedule examinations to determine if the veteran had a
neurological disorder of the hands and feet or memory loss
that was related to hypertension. Pursuant to the remand,
the VA examiner stated in 2005 that he reviewed the claims
folder and the veteran did not have a neurological disability
of the hands and feet or memory loss. Therefore, the
examiner did not provide the requested opinions. The Board
finds that this is an inadequate examination in light of the
evidence in the claims folder to the contrary. The examiner
may well determine at the next examination, that the veteran
does not have a neurological disorder of the hands and feet
or memory loss, but he or she must at least address the
evidence in the claims folder that indicates the contrary.
The veteran has reported numbness in his hands and feet at
various times including as noted by Dr. Teitel in September
1996. The veteran underwent a nerve conduction study in
March 1996 which indicated strong evidence of severe advanced
carpal tunnel syndrome involving both hands. With respect to
memory loss the VA examiner in June 2002 indicated that the
veteran had a great deal of difficulty with his memory. In
light of this evidence, the Board finds that a remand
is required for an examination and opinion with respect to
the diagnosis and etiology of the veteran's neurologic
disorder of the hands and feet, and memory loss, if any. The
United States Court of Appeals for Veterans Claims (Court)
has held that "fulfillment of the statutory duty to assist
... includes the conduct of a thorough and contemporaneous
medical examination...so that the evaluation of the claimed
disability will be a fully informed one." Green v.
Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7
Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet.
App. 127, 138 (1993) (duty to assist includes providing the
veteran a thorough and contemporaneous medical examination
when needed)).
Accordingly, this case is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington DC for the following
action:
1. The RO should schedule the veteran
for a neurological examination to
determine the nature and etiology of
disorder of the hands and feet, if any.
The examiner is requested to review the
entire claims folder and to specifically
review the private medical records and VA
treatment records showing complaints of
numbness, burning, and discomfort of the
hands and feet, as well as the nerve
conduction study from March 1996
indicating a diagnosis of carpal tunnel
syndrome. All necessary tests should be
conducted. If a neurologic disorder of
the hands and feet is diagnosed, the
examiner is requested to offer an opinion
as to whether it is at least as likely as
not (50 percent probability or more) that
the veteran's neurologic disorder of the
hands and feet was caused by or
aggravated by his hypertension. A
complete rationale for any opinion
offered should be included. If the
veteran is not diagnosed with a
neurologic disorder of the hands and
feet, the examiner is requested to
specifically address the previous
treatment records suggesting a
disability.
2. The RO should schedule the veteran
for an examination to determine the
nature and etiology of his memory loss if
any. The examiner is requested to review
the entire claims folder and to
specifically review the report of the
June 2002 VA examination that indicated
the veteran had a great deal of
difficulty with his memory. All
necessary tests should be conducted. If
memory loss is diagnosed, the examiner is
requested to offer an opinion as to
whether it is at least as likely as not
(50 percent probability or more) that the
veteran's memory loss was caused by or
aggravated by his hypertension. A
complete rationale for any opinion
offered should be included. If the
veteran is not diagnosed with memory
loss, the examiner is requested to
specifically address June 2002 VA
examination report suggesting a
disability.
3. Following the above, the RO should
readjudicate the veteran's claims,
including reviewing all newly obtained
evidence. If any benefit sought on appeal
remains denied, the appellant and the
appellant's representative should be
provided a supplemental statement of the
case that contains a summary of the
evidence and applicable laws and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that is remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs